Sunday, September 30, 2007

Mark Steyn on Ahmadinejad at Columbia University

Mark Steyn on Ahmadinejad at Columbia, here. (For a blog comment, my forwarding of it to Steyn, and Steyn's reply, see the very end of this post.) Excerpts:

Saturday, September 29, 2007
OC Register

Democracies talk, tyrannies act


"I'm proud of my university today," Stina Reksten, a 28-year-old Columbia graduate student from Norway, told the New York Times. "I don't want to confuse the very dire human rights situation in Iran with the issue here, which is freedom of speech. This is about academic freedom."

Isn't it always? But enough about Iran, let's talk about me! The same university that shouted down an American anti-illegal-immigration activist and the same university culture that just deemed former Harvard honcho Larry Summers too misogynist to be permitted on campus is now congratulating itself over its commitment to "academic freedom." True, renowned Stanford psychology professor Philip Zimbardo is not happy. "They can have any fascist they want there," said professor Zimbardo, "but this seems egregious." But, hey, don't worry: He was protesting not Mahmoud Ahmadinejad's presence at Columbia but Donald Rumsfeld's presence at the Hoover Institution.

At some point during this past week, it was decided that the relevant Ahmadinejad comparison was to Nikita Krushchev. The Soviet leader toured America in 1960, was taken to a turkey farm, paid a visit to Frank Sinatra and Co. on the set of "Can-Can" and pronounced the movie "decadent." And yet the republic survived. As one of my most distinguished fellow columnists, Peggy Noonan, put it in the Wall Street Journal, Krushchev's visit reminded the world that "we are the confident nation." And, as several e-mailers observed, warming to Noonan's theme, back then hysterical right-wing ninnies didn't get their panties in a twist just because a man dedicated to the destruction of our way of life was in town for a couple of days.

Whether or not this was a more "confident" nation in 1960, it's certainly a more post-modern nation now. I don't know whether Stina Reksten, as a 28-year old Norwegian, can be held up as an exemplar of American youth, but she certainly seems to have mastered the lingo: We've invited the president of Iran to speak but let's not confuse "the very dire human-rights situation" – or his nuclear program, or his Holocaust denial, or his role in the seizing of the U.S. Embassy hostages, or his government's role in the deaths of American troops and Iraqi civilians – with the more important business of applauding ourselves for our celebration of "academic freedom."

So much of contemporary life is about opportunities for self-congratulation. Risk-free dissent is the default mode of our culture, and extremely seductive. If dissent means refusing to let the Bush administration bully you into wearing a flag lapel pin, why, then Katie Couric (bravely speaking out on this issue just last week) is the new Mandela! If Rumsfeld is a "fascist." then anyone can fight fascism. It's no longer about the secret police kicking your door down and clubbing you to a pulp. Well, OK, it is if you're a Buddhist monk in Burma. But they're a long way away, and it's all a bit complicated and foreign, and let's not "confuse the very dire human rights situation" in Hoogivsastan with an opportunity to celebrate our courage in defending "academic freedom" in America. Ahmadinejad must occasionally have felt he was appearing in a matinee of "A Chance To Hear [Insert Name Of Enemy Head Of State Here]." Could have been Chavez, could have been Mullah Omar, could have been Herr ReichsfuhrerHitler himself, as Columbia's Dean John Coatsworth proudly boasted on television.

Lots of prime ministers and diplomats accepted invitations to meet with Hitler, and generally the meetings went very well – except for one occasion when Lord Halifax, the British foreign secretary, was greeted by the little chap with the mustache, mistook him for the butler, and handed him his coat. But even that faux pas is a testament to how normal thugs can appear in social situations. Civilized nations like chit-chatting, having tea, holding debates, talking talking talking. Tyrannies like terrorizing people, torturing people, murdering people, doing doing doing. It's easier for the doers to pass themselves off as talkers then for the talkers to rouse themselves to do anything.

As witness this last week. Lee Bollinger, the president of Columbia University, was evidently taken aback by the criticism he got for inviting Ahmadinejad and so found himself backed into what, for a conventional soft-leftie of academe, was a ferocious denunciation of his star guest, dwelling at length on Iran's persecution of minorities, murder of dissidents, sponsorship of terrorism, nuclear ambitions, genocidal threats toward Israel, etc. For a warmup act, Bollinger pretty much frosted up the joint. The Iranian leader sat through the intro with a plastic smile, and then said: "I shall not begin by being affected by this unfriendly treatment." He offered many illuminating insights: There are, he declared, no homosexuals in Iran. Not one. Where are they? On a weekend visit to Kandahar to see the new production of "Mame"? Alas, there was no time for follow-up questions.

And afterwards Bollinger got raves even from the right for "speaking truth to power." But so what? It's like Noel Coward delivering a series of devastating put-downs to Hitler. The Fuhrer's mad as hell but at the end of the afternoon he goes back to killing, and dear Noel goes back to singing "The Stately Homes Of England." Ahmadinejad goes back to doing – to persecuting, to murdering, to terrorizing, to nuclearizing – and Bollinger cuts out his press clippings and puts them on the fridge.

The other day, National Review's Jay Nordlinger was musing about our habit of referring to some benighted part of the world's "humanitarian needs" and wondered when we'd stopped using the term "human needs," which is, after all, what food, water and shelter are. And his readers wrote in to state the obvious: That "humanitarian" label gives top billing not to the distant, Third World victim but the generous Western donor – the "humanitarian" relief effort, the "humanitarian" organizations, the NGOs, the Western charities: It's about us, not them. Bill Clinton's new bestseller on charity is called "Giving" – because it's better to give than to receive, and that's certainly true if the giver is busying himself with some ineffectual feel-good "Save Darfur" fundraiser while the recipient is on the receiving end of the Janjaweed's machetes. The Sudanese government appreciates that, as long as we're allowed to feel good about ourselves and to participate in "humanitarian relief," the killing can go on until there's no one left to kill. Likewise, Ahmadinejad knows that, as along as we're allowed to do what we do best – talk and talk and talk, whether at Columbia or in EU negotiations – his regime can quietly get on with its nuclear program.

These men understand the self-absorption of advanced democracies. The difference between Winston Churchill and Ward Churchill, another famous beneficiary of "academic freedom" who called the 9/11 dead "little Eichmanns," is that for Sir Winston talking was a call to action while for poseurs like professor Churchill it's a substitute for it.

The pen is not mightier than the sword if your enemy is confident you will never use anything other than your pen. Sometimes it's not about "freedom of speech," but about freedom. Ask an Iranian homosexual. If you can find one.


Dear Mark,

I posted a bit of your Columbia U Iran column up on my international law blog - well, quite a lot, actually - well, probably violated copyright law, to be honest - and received the following quite serious response back in the blog comments. (See below the asterisks.)

I am big fan of yours - something which caused a senior editor of ... well let's just say a very important book review to shake his head and say, "Ken, you have almost such exquisite taste, but you have this weakness for Mark Steyn" and, he added, "and AA Gill." Quite. All best. KA.

Anonymous [in the comments] said...

"Mark, I must be a little older than you. First of all, I remember the persecution of homosexuals in the US right into the 1970's. And, being a San Franciscan, I remember the national outrage at my city's adoption of gay culture in the 1980's. That wasn't so long ago, Mark. And now an Iranian leader from a different culture is mocked for not recognizing homosexuality in Iran. You know, it's quite possible he just doesn't know any.

"I can tell you this, Mark. I lived in Iran in 1975. Its people are in many ways the same as the rest of the world. Its culture is different, but there are a good many people there. The nation has suffered the trauma of a revolution and then had a terrible war inflicted upon it for eight long, bloody years. Iran is easily criticized from afar, from a Western perspective. But Mark, until you've visited a land and its people, preferably living there for a spell, your criticism is merely the passing off of opinions generated by the words and writings of others, many times told from the vantage point of bias and special interest.

"By the way, Mark, have you ever heard Ward Churchill speak in public? I've heard him speak at City Lights bookstore in San Francisco's North Beach. Again, all you've done here is recycle a quote you've read from sources other than your own. When you sit and listen to Mr. Churchill, you gain an understanding of his personal perspective. You may not agree with him, but that's an insight you would make first hand.

"My advice is to gain some firsthand knowledge before simply regurgitating opinions on subjects that interest to you."


Your commenter's a twit. He "remembers the persecution of homosexuals in the US right into the 1970s"? Okay, how many homosexuals were executed in New York or San Francisco or even Salt Lake City in the 1970s? That's what happens to homosexuals in Iran: they get sentenced to death. The inability to distinguish between "persecution" US-style and Iranian-style is a sign of a moral frivolity that would shame anyone who gave it a moment's thought. Oh, and by the way, Iran-wise, I have plenty of hands-on experience.

Couperin, Pieces de violes 1728

One of my very favorite albums of viol music is Jordi Savall, Ton Koopman, and Ariane Maurette, Francois Couperin, Pieces de violes, 1728 (Astree). It is gentle and sweet, stately and dignified, yet with enough emotion and feeling in restraint, as it were, that it captures me. Sometimes when I am working very late, as in last night, I put it on over and over and over and over. (I have a weakness for jigs, and the Gigue of the first suite hooks me right in, and always has, and the Chaconne - I have a real weakness for the Chaconne, something about the interior beat - that ends the first suite is lovely.)

(Good heavens, I see that Amazon has listed only a used copy for $70! That seems excessive, to say the least.)

World Bank study, Where is the wealth of nations?

I have frequently been critical of the World Bank on this blog, and will continue to be, both as to questions of governance and corruption, and as to fundamental mission. As the the second, mission, I am less and less convinced that the World Bank lending mission has any great importance anymore, and that its future lies in grantmaking to the really poor world, and in serving as a place for studies like this one, below, Where is the Wealth of Nations?: Measuring Capital for the 21st Century.

This is a quite extraordinary document, one that deserves wide, wide reading in setting policy for international development. And to give credit where credit is due, the Bank deserves considerable praise for putting out a report that, in its seriousness and depth, might be thought to raise considerable challenges to the typical international organization approach to global poverty.

Here, in pdf. Required reading.

(ps. I see that the Wall Street Journal has an op-ed piece praising the report by Ronald Bailey, Saturday-Sunday, September 29-30, 2007, "The Secrets of Intangible Wealth." It is a pretty good summary.)

Sundays with Stendhal

Seeing how Brian Leiter, Belle Lettre, and other bloggers post up poetry and other stuff on a weekly basis - and seeing how this blog is a little bit of anything - I thought I might try something similar. So, I am going to run a series for a while of quotes from Stendhal. Mostly they will come from The Red and the Black, but sometimes from other things, like the essay On Love, and from The Charterhouse of Parma, other places. As I think I have said (in fact I'm sure I have said repeatedly), I was introduced to The Red and the Black at the age of fourteen by a friend at school. I read it and immediately saw myself forever in Julien. I have reread the book on average somewhere between once a year and once every other year. A lot. When I was fifteen, I had a small business - I confess - writing English and history papers for money for the rich boys' school up in the hills above Claremont, and I wrote four papers for one class on The Red and the Black. Just this term, one of my European LLM students told me she was named for Clelia Conti; in recognition of her parents' excellent taste, naturally she will get an A.

So, let us start with a quote I have actually put up on this blog several times, and which could serve quite well as the motto of, I don't know, one of our human rights organizations:

Julien fell asleep, dreaming of honors for himself, and liberties for everyone else.

Friday, September 28, 2007

Julien Sorel - an appreciation of Maurice Leiter's poem on Brian Leiter's blog

By happenstance, I ran across the following poem by Maurice Leiter, Julian Sorel, posted as the Friday poem on Brian Leiter's blog, here. The last bit of the poem is this:

It's a good story and if I told it
Then I'm glad I told it
Let someone more detached
Provide a fitting commentary

I felt too close to Julian
To judge him
Certainly not in public

Well, it's rare that anyone captures part of my feeling for The Red and the Black so well. I've never told the story to a class. But for several years, when on vacation and hiking in the Eastern Sierras, part of my obligation while hiking was to tell a story that would keep kid Renee's mind of her feet. Rules were simple - as long as we kept moving, I had to keep telling the story; if we stopped, I stopped. This tended to slow me down and speed Renee up.

One year I told Robert Heinlein's The Puppet Masters, which she eventually read and has largely memorized. Another year I told a story from a book I only vaguely recollected from my childhood, Trouble at Timpetil (which my wife eventually found and got for Renee and me). And one year I told the Red and the Black. We hiked about ten miles that day, and spent about seven or eight hours on the trail - out of South Lake, up Bishop Pass trail, detour to the Chocolate Lakes, nestled below The Inconsolable Mountains. Renee was entranced by the story of Julien and Mathilde. Curiously, though, she has never read the novel itself. I still read the novel - I was even reading it last night, because I thought I might take a quote from the chapter called, Another Danton? But then I got distracted by the lovely chapter wherein Mathilde says (you see, it's sitting right here on my desk),

"Whatever are you dreaming of, Sir?" There was a note of intimacy in her question, and she had come back running and was quite out of breath in her eagerness to be with him. Julien was tired of self suppression. In a moment of pride, he told her frankly what he was thinking.

So as you can tell, I am entirely with Maurice Leiter in saying "I felt too close to judge Julian/ Certainly not in public." Quite.

Monday, September 24, 2007

Alan Kaufman responding to my solicitation of views on civil military relations and the JAG

Alan Kaufman, a friend, colleague, and former student of mine way back in the old days at Harvard, and nowadays a senior Navy JAG lawyer who knows way, way more than me on many of these topics, has graciously given a detailed, thoughtful response to the issues raised in my blog post on Glenn Sulmasy and John Yoo's new UCLA article on civilian-military relations. It is in the comments, but I think I will pull up some of the more expert and detailed responses into the main blog as posts so it all doesn't get too long. I'll put a new tag, "civilian-military relations" as well. (I much agree with Alan, by the way, as he says below that Professor David Kennedy's book Of Law and War is well worth reading, likewise, as I've said before on this blog, Jack Goldsmith's The Terror Presidency.) Here is Alan, with my thanks and best wishes as ever:

Alan G. Kaufman said...

Ken –

I appreciate your invitation to comment. I haven’t read the article yet, only your blog entry, but here are some initial impressions and musings:

I am amazed that Professors Yoo and Sulmasy make the argument that the role of JAG Corps lawyers in providing legal advice to military commanders is evidence of some sort of a breach in civil military relations. Just amazed.

All military officers, including judge advocates, take an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic, and to bear true faith and allegiance to the same.

Enlisted personnel take that oath as well, and at least in the Navy, also swear to obey the orders of the officers appointed over them ( to quote: “that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.”).

That last part isn’t in the officer’s oath.

So officers - all officers, not just JAGs -- take an oath not to a person or a to a leader; but rather to the rule of law – the Constitution. Not in the sense of the “rules,” but that in the U.S. the law rules us, not a person.

But the Constitution does set out who is the Commander in Chief, and the culture is to give advice, and then to execute the decision of the Commander, even if contrary to the advice given. Unless the decision is to commit a crime – because to obey an unlawful order is itself a crime. That’s when moral dilemmas can arise . . . but I digress from where I want to go with this.

My impression is that perhaps Professor Yoo’s and Sulmasy’s arguments are part of a general sense among some that Commanders are finding themselves hamstrung by lawyers and legal advice in the headquarters. Professor Jack Goldsmith attempts to get at this in his new book, in which he suggests that law and lawyers restrain too much and too greatly the operational and command discretion of the Commander in Chief and his subordinates – that there are hamstrung by “lawfare.”

I would suggest that they do not understand too well the dynamics that occur between a judge advocate and an operational commander and his battle staff in operations. Their views do not comport with my personal experiences, nor I suspect, with the experiences of most others that have served in that role.

One Commander, a 4 star, whom I served, was fond of making the point that “Lawyers advise, and Commanders decide.” And they don’t always take the lawyers’ advice –but they do use it to understand and assess risk, to decide how much risk to accept, and often to develop strategies to mitigate risk or develop alternative courses of action –just as they do with input from across their staffs (from the intelligence officer, the logistics officer, the operations officer, the policy and strategies officer and others).

There is more, of course, too much to put into a comment on a blog, so of course all of this is a topic that is certainly worth exploring. I don’t think I can agree with Yoo and Sulmasy, either about the breach, or about the role judge advocates play.

I think Goldsmith gets at the issue in his book when he suggests that the President’s decision to go it alone in “making law” for this long war on terror has been a tactical mistake with profoundly negative strategic consequences, both for the power of the presidency, and for success in this fight. We lost legitimacy, and that was strategically unhelpful, both domestically and internationally.

I suggest interested people read Professor David Kennedy’s book, “Of Law and War,” for a different perspective (maybe even read it against Joseph Nye’s discussions of “soft power” to provoke some more thought). Kennedy makes some perceptive points about war, law, strategy and legitimacy.

Law, he suggests, is part of the “geography” in which a Commander must fight. He must understand this landscape, and if possible, shape it for the optimum strategic, tactical and operational advantage.

For example:

“ .. .law is relevant to war . . .The military, like other public and private bureaucracies today, operates in war and peace against the backdrop of innumerable local, national, and international rules regarding the use of me, the financing of arms and logistics and the deployment of force. Taken together, these laws can shape the institutional, logistical, even physical landscape on which military operations occur. Today’s military is also itself a complex bureaucracy whose managers discipline their forces and organize their operations with rules. . . .”

“…. When corporate lawyers assesses the significance of all these laws for a business client, they look not only at the formal jurisdictional validity of the rules. They also assess their likely sociological effect – their likely impact on the client’s business strategy. Who will want to regulate the transaction? Who will be able to do so? What rules will influence the transaction even absent enforcement? And they assess opportunities for the corporation to influence the rules, or to use them in new ways to achieve their strategic objective.”

“ . . . The practice of military and humanitarian law requires complex and shifting predictions about law and fact. Whose interpretation of the law will, in fact, prevail, and before what audience?”

“Law has become more than the sum of the rules; it has become a vocabulary for judgment, for action, for communication. Most importantly, law has become a mark of legitimacy –and legitimacy has become the currency of power.”

“ . . .the laws in force are not necessarily the laws that are valid, in some technical sense, but the rules that are persuasive to relevant political constituencies. Whether a norm is or is not legal is a function not of its pedigree, but of its effects. Law has a effect – is law – when it persuades and audience with political clout that something someone else did, or plans to do, to or is not legitimate. The point is no longer the validity of the distinctions, but the persuasiveness of arguments.”

Sets up some interesting debate, I would guess.

Now let me follow one last tangent. How do Commander’s view their judge advocates, how can we serve them better?

A few years ago, an “Independent Review Panel to Study the Relationships between Military Department General Counsels and Judge Advocates General of September 15, 2004, established in compliance with Section 574 of the FY 2005 Defense Authorization Act,” included the following relevant observations:

• Lawyers at Headquarters and in the field play an important role in the DoD’s combat operations, and commanders increasingly turn to their assigned legal counsel for advice on a wide range of issues.

• Since 9/11 there has been a significant increase in the number and complexity of legal issues arising in joint commands, and in the speed with which those issues must be addressed.

• It is clear from the Commanders who testified that legal advice is essential to effective combat operations – “legal advice is now part of the ‘tooth,’ not the tail.’”

• Operational commanders testified that the rule of law has never been more important and that lawyers are an integral part of their staffs and missions.

• The Commander’s lawyer, sometimes in coordination with Pentagon legal offices, is of particular value in operations occurring outside of familiar legal frameworks, such as those associated with the war on terrorism.

• Every commander who testified stressed the importance, indeed the criticality of having the SJA at his side as part of his leadership team during operations.

• The joint commander’s staff judge advocate is the focal point for all legal issues within the command. • The DoD General Counsel is responsible for providing guidance and resolution when legal issues are elevated above the Unified command level.

• The Chairman’s Legal Counsel plays a pivotal role in facilitating legal support for the joint commands, to include acting as a liaison for the DoD General Counsel.

• Civilian and military lawyers are most effective when engaged early in the process and made a part of the organization’s senior management team.

No doubt people will want to debate whether these observations are true as well as whether, if true, this is good or bad. My concern is a little different. Indeed, I would argue to the contrary of Yoo and Sulmasy, and in light of some of Kennedy’s points, the following –the problem isn’t really about lawyers in headquarters generally, it’s more about having the right, appropriately trained, experienced and educated lawyers, in the right place to b ring influence to bear – as you suggest. We don’t have that now, in my opinion. I argue as follows:

The requirement for judge advocates in joint warfighting commands and on the joint staff to give sound advice in the planning and execution of complex joint operations is extensive and the number of experienced judge advocates needed for current operations in joint missions is growing. Legal support is an integral part of the command and control capability for an operational commander. Moreover, “rule of law” is a national security capability that can produce strategic and operational effects. Operational commanders must have a high level of legal support to fully leverage these capabilities.

One aspect of effective support is having experienced and qualified officers of sufficient rank to integrate effectively with operational staffs and other stakeholders at the highest levels of leadership. While in some cases, force of personality and talent can overcome the challenges associated with a lower than appropriate rank, the fact is that rank matters in the military, and effective performance in critical positions should not be left unnecessarily subject to vagaries associated with personality.

Judge Advocates operating in support of 4 star Combatant Commanders in operational command of joint operations, and in support of the Chairman of the Joint Chiefs of Staff, who is the primary military advisor to the Secretary of Defense and to the Commander in Chief, should hold rank commensurate with these responsibilities. The Military Department Judge Advocates General, who currently hold two star rank, and have great influence through their role as legal advisors to Secretaries of the Military Departments and to the Army and Air Force Chiefs of Staff, and to the Chief of Naval Operations, are nevertheless not in the operational chain of command to which the above findings refer, and so play only an indirect advisory role in the provision of legal advice to the Chairman, Joint Chiefs of Staff, to Combatant Commanders, to the Secretary of Defense, and ultimately to the President in his capacity as Commander in Chief.

In fact, although the Military Department Judge Advocates General have played an increasingly important role in legal policy making in the matter of military tribunals or commissions for unlawful combatants detained in ongoing long war operations, in matters of direct legal support to ongoing operations since 9/11, it is Combatant Command and Joint Force Commander SJAs, and not Military Department Judge Advocates General who have been called upon to brief the President, to testify to Congress, and have been subject to media attention for advice given during the conduct of highly visible combat operations. To be most effective, the Combatant Command (COCOM) Staff Judge Advocate (SJA) and the Legal Counsel (LC) to the Chairman of the Joint Chiefs of Staff (CJCS) should, in my opinion, hold the rank of a general or flag officer.

Currently, outside of the reserve forces, there exist eight one star judge advocates in all of the military departments. None are assigned to combatant command or joint staff billets. The Navy has no judge advocates holding active duty one star rank. The SJA to the Commandant of the Marine Corps is by law a Brigadier General, and is the only Marine judge advocate holding one star rank. In some cases, one star judge advocates are assigned to service component headquarters subordinate to a Combatant Commander even though the Combatant Commander’s SJA is of lower rank. For example, Air Mobility Command, a service headquarters component subordinate to Commander Transportation Command, has a one star staff judge advocate although Commander Transportation Command has a Colonel. This reflects an arguably inappropriate misalignment of judge advocate resources with the operational chain of command.

Similarly, the Chairman of the Joint Chiefs of Staff, who is the principal military advisor to the President and Secretary of Defense, and a member of the National Security Council, has a Colonel serving as his Legal Counsel, while subordinate Army, Navy and Air Force members of the Joint Chiefs of Staff benefit from the direct support of Military Department Judge Advocates General, all of whom currently hold two star rank. The Commandant of the Marine Corps, also a member of the Joint Chiefs, and in that capacity subordinate to the Chairman, has by law a Brigadier General assigned as his SJA, as well as a Senior Executive Service civilian general counsel assigned from the Navy Department’s Office of General Counsel. All of this reflects a misallocation of legal resources at the expense of operational commanders and the operational chain of command.

Some will suggest that this misallocation occurs because neither Combatant Commanders nor the Chairman of the Joint Chiefs of Staff have requested flag or general officer legal support in their manning documents, over which they have complete control. In fact, however, quotas on numbers of flag and general officers who may be assigned to these staffs force Combatant Commanders and the Chairman into a “Hobson’s Choice” requiring the sacrifice of flag or general officer staff support in some other critical staff billet in order to make room for a one or two star SJA or LC.

Instead of passing on this irresolvable resource allocation problem to Combatant Commanders and to the Chairman, a better approach is to require by law that the SJA or LC billet be filled by at least a one star judge advocate (as has been done for the benefit of the Commandant on the Marine Corps, who has by law a Brigadier General assigned as his SJA (see Title 10 section 5046)) and then look to the Military Departments to utilize judge advocate resources more appropriately in support of operational joint commanders and the operational chain of command

.……………….There’s some grist for debate. I stand by for the clobbering I expect if anybody reads this.

AG Kaufmanwho was, and remains, your student

Sunday, September 23, 2007

US military-civilian relations, Glenn Sulmasy and John Yoo's new article, and a solicitation of reader views

Glenn Sulmasy, JAG and law professor at the US Coast Guard academy, and John Yoo have published a new article in the UCLA law review, "Challenges to Civilian Control of the Military: A Rational Choice Approach to the War on Terror," 54 UCLALR 1815 (August 2007). (Thanks Andrew for the link.) (I've cleaned up some grammar and added some bits.)

Let me say at the outset that I am not concerned in this post with views on John Yoo, his work in government, the torture memos, or his views of executive power. I am not particularly concerned in this post with rational choice theories, either (I myself don't especially agree with their application in this article). It is not the theoretical account or answers Sulmasy and Yoo give - with apologies to the authors - that seems to me important here.

This article should perhaps be read as the public opening of a debate, within the legal academy and I hope more broadly, over a fissure (fissures, more exactly) that might be thought to exist under the surface of civilian-military relations. I think that I, at least, have been informally seeing some indication of this since even before 9-11 [added: ;others might well think, as Alan Kaufman does in the comments, that this is not really the case and even perhaps, KA speaking again and not Alan, that John is extrapolating too much from his personal experience in the Bush administration being opposed by military lawyers]. Still, I will say that in my work as a professor with a number of students going into the JAG, but even before, as a NGO person who had worked extensively with (and frequently against) many US military lawyers both junior and senior on various law of war issues such as landmines, etc., over several decades, I long had the strong but anecdotal impression that there were odd gaps between JAG culture and the rest of US military culture, and various strains and strands within JAG culture itself. I did not pay it much mind in earlier years, figuring this had always been true in the military. I also didn't pretend to understand it within military culture.

But 9-11 caused me to pay much closer attention, as various controversies in the war on terror brought these and new strains much closer to the surface. Not ever having been in the military or JAG, I have never had confidence in my ability to analyze these relationships. I don't now. but I do think now that they are of sufficient public importance that they need to be taken up by the general intellectual community. Perhaps I am wrong about their importance and overestimate the actual controversies and fissures, and perhaps John is simply extrapolating too much from his own experience; I solicit your views on this below. But first let me make a few more not-very-well organized comments and offer two excerpts from the article.

I always thought, on the one hand, that the professional military lawyers were substantively right in their initial conclusion, contrary to Gonzales' White House counsel's office, that the Geneva Conventions applied. I don't think the administration's civilian lawyers, in the first flush after 9-11, understood that their professional military lawyers were not saying that captured Al Qaeda would be POWs, but instead merely that if the administration treated the attack as war, then the overall regime of the laws of war of course applied - with the result that under GC3, Al Qaeda would turn out to be unprivileged belligerents or unlawful combatants. Some highly experienced law of war experts inside the military would eventually conclude (following the "gap" argument about GC3 and GC4) that they should be treated instead as spies and saboteurs under GC4, but no one so far as I know suggested that they would be POWs, and the White House lawyers did not have the background knowledge really to understand that (the role of David Addington in this debate is unknown to me, but I do wonder). (Possibly I am wrong about that and there were professional laws of war lawyers in DOD arguing that they were POWs who could then be tried - so far as I know, however, although perhaps some later reached that conclusion as they became unhappy with what military commissions gradually turned out to be, it was not the initial advice from DOD lawyers.)

My impression, in any case, of the White House counsel's office was that rather than calling the professionals at DOD, its lawyers started flipping through the Geneva Conventions for the first time in their professional careers. I know some of these lawyers and have great respect for them, but I think they reacted quite wrongly in thinking that they could quickly come up with the necessary expertise and sound practical judgment. I was appalled that senior Pentagon lawyers were so thoroughly sidelined by the adminstration. The administration and the country paid the price for that - and still are.

On the other hand, I have been surprised and dismayed by the public vehemence with which some JAGs have fought the very idea of military commissions - highly invested, as Jack Goldsmith observes in his new book in the arena to which they are accustomed as criminal lawyers, the Uniform Code of Military Justice, and seeking and finding support among NGOs, military law groups, and other places outside the structure of government. I have been particularly astonished, although perhaps I should not be, at the extent to which - in my anecdotal experience, to be sure - some JAG defense lawyers have bonded with the various and often times altogether radical civilian and NGO defense groups for Guantanamo detainees. And let's be blunt; there are also post-JAG career issues here, too - these all merge with strongly held, sincerely held moral views about the rule of law and how trials should proceed that can sometimes condition one's fundamental identity, as a lawyer and a JAG.

Maybe that's a good thing, not a bad thing - I am not here judging it, because I do not have a clear sense of how a military lawyer's professional roles interact in every way. But I do think it bears talking about it if people think it is something that is occurring in the interaction of the JAG and the war on terror. Maybe it isn't, not really, or maybe it has long been an accepted part of the professional role of JAG officers as lawyers - still, speaking as an outsider, the current alliances, interactions, and public exposure are all really, really different from anything I ever saw in my interactions with the JAG working in NGOs. I have likewise been struck by how much certain JAG defense lawyers seemed to have internalized the use of media as a defense tool, even within an altogether different military system, and even in ways that deliberately politicize issues, to the point of making them quite nakedly anti-administration and OJ-defense-team-like.

I realize and acknowledge this represents these lawyers' deep moral concern that the Bush administration's approach to these cases was simply and unacceptably wrong. I respect that conviction, but am not entirely sure (and am not persuaded that this article presents the right answer; I have doubts that rational choice theory offers the right answer) how a military officer as well as officer of the court and defense counsel should respond in such circumstances. [Added:] One thing I am certain of, though - while being quite unclear about professional responsibility and military lawyering generally - is that criticism implicit and explicit in the article about scholarly writings by military lawyers is wrong; I thought, for example, that Charles Dunlap's 1990s article about the politicization of the officer corps leading to a coup in the form of a fictitious letter was both an outstanding and unusual piece of scholarship, and an entirely appropriate way in which an intelligent, professional, thinking officer corps and its lawyers need to discuss in a scholarly way rising issues, including those that go to professional formation and values.

It was interesting to me, too, that an article of mine, from not long after 9-11, was quoted back to me by two JAGs (it can be downloaded free here; I think it was used in a couple of JAG classes after it first came out, which is how they had seen it). My article argued that, in my experience as an NGO person debating with US military lawyers about a wide variety of human rights and law of war matters over a couple of decades, the peculiarity of the US military lawyer was a preference to treat such matters not as a matter of moral vision, but of "merely" technical lawyering, apolitical technical legal matters, and negotiation of the the US national security interest. I said in that piece that US military lawyers, in my personal experience with them, in fact had quite a burning moral vision of the laws of war and their meaning, and that US interests would be furthered if they were willing to argue more directly from moral propositions just as the NGOs do. It was pointed out to me that, in fact, JAG officers are far more willing to do that today than when I wrote that article, or at least in the pre-9-11 years - but as against the civilian authorities in their own government.

[Added:] Interestingly, at least to me, one of the core observations of that article about the interaction of US military lawyers with groups such as NGOs was the engaging, downright endearing desire of US military lawyers to be liked by the NGO people - they didn't want to think of themselves as the bad guys defending bad stuff; they thought of themselves as good guys just like the NGOs and wanted to go hang out with them and find common grounds of goodness and idealism. And in the unhappiness in some quarters over miltiary commissions and Guantanamo, it appears they have. It wasn't what I was thinking when I wrote that piece, and I'm actually surprised that Sulmasy and Yoo didn't cite it, but there it is.

Part of this, of course, locks into the whole question of citizens and soldiers, one's rights to expression even when one is a soldier. There is a tendency - I share it - to sympathize with the soldier or officer or JAG who feels morally compelled to speak out. On the other hand, the very concept of democratic civilian control over the military requires that military not operate as an independent branch of government, even on things it regards as deep moral propositions, but treat itself as a pure instrument of civilian will. That has never been true of the generals who control grand strategy, of course, and can't be - but it has never been thought to extend down to individual JAGs. Yet, if it comes to individual techniques, such as interrogation or detention techniques, that an individual JAG or, frankly, any other soldier finds fundamentally abhorrent and unconscionable, in our system we both expect the concern to be raised - and we expect it somehow to be resolved, for or against, within what is ultimately a structure of civilian authority.

So, on the one hand, a firm belief that even an instrumentality has to have some independent, internalized limits even as against those who direct it. On the other hand - well, I have spent a lot of time in Latin American military dictatorships over the past thirty years, and in every case, their justification for doing what they did was predicated on the view that the military had obligations to the "nation" that were greater than any particular set of civilian leaders. That enabled them to justify coups against any particular civilian administration in the name of some higher national conception. The UCLA article appears to suggest - the language is careful on that point - that some senior officersr, and some miltary lawyers - indeed, seemingly particularly military lawyers - view any administration in theory, but the Bush administration in particular, as merely temporary holders of office, whereas the military's allegiance is to something more eternal, even if it is the constitution as independently construed by the officer corps.

If that were really true, of course, it would come far too close to the "higher concept of the nation" that was relied upon by Latin American military dictators from Pinochet to Guatemala's successive military rulers. Or else Seven Days in May, which by happenstance I watched not long ago. But it was also hard to see that the article presented evidence of that - after all, it is true of all civil servants, always, that they see administrations come and administrations go; there are many miles between that and a view that the military serves some higher extra-administration mission. That seems to me the most incendiary implication of Sulmasy and Yoo's article, but one in which it is an enormous leap from one to the other, unjustified on its own.

Please be clear about this - I am not characterizing JAGs as a whole, of course, and am not even trying to say what I think the professional roles and their interactions should be, but am simply reflecting on my experience in being around different groups on various occasions and in various ways in light of this new article. My experiences are anecdotal, from someone outside the military. And my respect for the JAG and the way in which the rule of law has become an important part of military culture is enormous. I am not even necessarily criticizing these increased signs of willingness, if they are real, to dispute civilian authorities on moral grounds. I don't pretend to have answers to the various questions raised in these discussions - I am not sure exactly what I think or to what extent it raises matters of concern. But I am initially convinced that it is a public discussion that needs to be had. It is a hard one, because like all such questions, it by implication can easily be read as raising questions about loyalty, obedience, fidelity, honor - all deeply personal as well as professional, questions of personal and professional identity. (It is partly because of the psychological issues involved that I doubt very much that rational choice theory can provide the answers. ) [Added: I also think that Alan Kaufman is right in suggesting that Jack Goldsmith's discussion on this in The Terror Presidency is much more nuanced and captures the genuine controversy better, but I will leave that aside here.]

It is hard to know exactly what forum in which to have such discussions, if they should be had at all, if there is any reason to have them. Within the JAG schools, for example - yes, in one way, but I don't think it's sufficient. There are important questions here that need to be had in dialogue with larger intellectual and political communities. I'd be happy to try and create a setting for something like that discussion at my school, or perhaps through the new Hoover task force on national security and civil liberties. There are many players who already have articulated points of view - the NGOs, civil liberties organizations, military law groups, etc. Maybe it is something that the Lieber Society - the law of war branch of the American Society of International Law - might take up. And again, let me be clear - this is not an attack on the integrity of the JAG, either individually or institutionally, far from it, but it is a question as to whether there are issues of professional identity that need to be openly discussed. I have very mixed feelings about these things, and am frankly not sure what I think, except that I do think the questions need to be asked.

(This inchoate sense that the war on terror as a legal proposition has strained the JAG, in its fundamental identity, is one reason I have pressed for a civilianization of the detention and trial process - a national security court and a civilian regime of administrative detention, despite the many uncertainties and questions that such a regime raises. It is time to get the military out of the detention business and out of the military commissions business, and to bring their activities in these things back to traditional battlefields, battlefields as traditionally defined in the law of war, not the whole world as (legal) battlespace as the war on terror regime asserts. That means, however, as Jack Goldsmith, Ben Wittes, me, and many others by now - Glenn Sulmasy included - have urged, that Congress has to bestir itself and legislate the legal mechanisms, not only this administrative detention proposal, but additionally the legal structures to govern that part of counterterrorism that consists of gathering intelligence and acting on it in ways that are neither law enforcement nor war in the narrow legal sense.)

I know a great many JAG and former JAG, many of them highly distinguished lawyers in and out of uniform, some of whom have gone into academia and elsewhere (and one salutary side-effect of the tragedy of 9-11 is the fact that JAG officers, for the first time in my experience in academia, are able to get serious academic positions in law schools where they bring a wealth of experience not available any other way to these academic subjects). I'm not military or former military, I'm a law of war expert via NGOs, and I would be highly interested in getting reactions to this article and to the general issues I've raised here from those who are or have been.

Is this in fact a tempest in a teapot and not something of any long term concern? Are there real issues here, or am I making more out of it than I should? Is this something that merits a public discussion, or it is something best left to the JAG schools, as part of the discussion of professional roles as military and lawyers? This blog not being a shy place, I would be very interested to hear from people like Geoff Corn, Bobby Chesney, Mike Newton, Alan Kaufman, and people from the Lieber Society. And nonmilitary people as well, from NGOs and academia, from DOS and DOD, and from people in or once in the Bush administration - Matt Waxman and Philip Bobbitt and Jack Goldsmith come to mind. I am trying in part to gauge whether this is an issue of sufficient salience that I should be looking to try and promote a larger discussion. Or whether this is getting all excited over something that isn't really an issue, in an article that is making strong claims it doesn't really back up. Perhaps my imagination is merely inflamed from having watched Seven Days in May a couple of months back, all Burt Lancaster and Kirk Douglas. I solicit your views. I'd rather raise it in a blog post in order to see whether it is worth having a more formal discussion, or whether it warrants an article, or whether I'm getting over-excited. Send me an email if you'd rather not post something publicly.

I have excerpted two chunks from the article, below, one from the introduction on the large issue of military-civilian relations, and the second from near the end, specifically on the JAG.

Recent events in the war in Iraq and in the War on Terror have raised the salience of civilian-military relations. The war in Iraq has brought forth a great deal of friction between civilian Department of Defense officials and military officers. For example, dozens of retired military officers, including some recently returned from Iraq, called for the resignation of Secretary of *1819 Defense Donald Rumsfeld on the ground that he had mismanaged the war. [FN13] The criticism from the retired officers echoed not-for-attribution comments by active duty officers, which had extended to criticism of Secretary Rumsfeld's heavy hand in planning before the invasion. [FN14] Perhaps the most publicized flashpoint occurred when Army Chief of Staff, General Eric Shinseki, testified before Congress that an insufficient number of troops were being sent to occupy Iraq. [FN15] Senior Department of Defense officials quickly repudiated Shinseki's comments. [FN16] Our system perhaps has not witnessed a similar level of public conflict between civilians and military officers since President Truman's well-known and controversial firing of General Douglas MacArthur during the Korean War.

Civilians and military officers have also struggled over legal policy in the War on Terror. In February 2002, after extensive debate between civilian and military leaders, President Bush decided that the Geneva Conventions did not apply to armed conflict with al Qaeda, and that the United States would not extend prisoner of war (POW) status to al Qaeda's Taliban allies. [FN17] According to media reports, senior officers of the Judge Advocates General's (JAG) Corps opposed the decision and turned to human rights groups to challenge the decision in court. [FN18] According to press reports, JAGs argued that the decision violated international law, and they implicitly believed that the president did not have the authority to interpret and apply international law on behalf of the nation's government and military.

A second event of friction occurred in the fall of 2006 during Congress's consideration of the Military Commissions Act of 2006. [FN19] In November 2001, President Bush issued an order establishing special military courts for the trial of terrorist suspects accused of committing *1820 war crimes. [FN20] Some JAG officers had opposed this option, arguing that the existing court-martial system under the Uniform Code of Military Justice (UCMJ) ought to be used instead. [FN21] Civilian leaders in the Pentagon went ahead with the design of the military commissions, but proceedings never began due to habeas corpus litigation challenging their legality. In Hamdan v. Rumsfeld, [FN22] the U.S. Supreme Court held that the commissions violated Common Article 3 of the Geneva Conventions, [FN23] which it concluded Congress had incorporated into the rules for military commissions when it enacted the UCMJ in 1950. [FN24]
In response, the Bush Administration sought legislation from Congress to place the military commissions on firmer ground and to overrule aspects of Hamdan. During congressional hearings on the legislation, the head JAGs for the U.S. Marines and the U.S. Army claimed that military commission rules that withheld classified information from the defendant (but not defense counsel) violated “the judicial guarantees which are recognized as indispensable by civilized peoples,” as called for by Common Article 3. [FN25] Brigadier General James Walker, the Marines' top uniformed lawyer, said “no civilized country should deny a defendant the right to see the evidence against him, and that the United States ‘should not be the first.”’ [FN26] This directly conflicted with the position of the civilians in the Bush Administration, who concluded that the legislation was consistent with the United States' international obligations. [FN27] In the same hearings, the *1821 representative of the U.S. Department of Justice argued that the proposal to allow the defense counsel but not the defendant to see classified information “properly administered by the military judge, would strike the appropriate balance between safeguarding our Nation's secrets and ensuring a fair trial of the accused.” [FN28] In the same written statement, the representative declared: “In the midst of the current conflict, we simply cannot consider sharing with captured terrorists the highly sensitive intelligence that may be relevant to military-commission prosecutions.” [FN29]

Some criticize these actions for undermining the principle of civilian control of the military. Others defend them as an example of military experts preventing civilians from making serious strategic or tactical mistakes. Whatever their intention or effect, military criticism or even resistance to civilian policy decisions is not restricted only to the war in Iraq or the War on Terror. Rather, such criticism is the latest in a series of major conflicts between civilian and military leaders since the end of the Cold War.

Even before the September 11 attacks, observers had concluded that civilian-military relations had reached a “crisis.” [FN30] During the early Clinton years, one prominent military historian argued that General Colin Powell had resisted civilian leaders--regarding the use of force in Bosnia--in a manner reminiscent of General George McClellan's hesitancy to commit to battle during the Civil War. [FN31] Writing in 1994, Richard Kohn, one of the nation's leading military historians, characterized the Armed Forces during the late George H.W. Bush and early Clinton Administrations as “out of control.” [FN32] By 2002, Kohn had concluded that “civilian control of the military has weakened in the United States and is threatened today.” [FN33] According to Kohn, “the American military has grown in influence to the point of being able to impose its own perspective on many policies and decisions.” [FN34] Summing up the post-Cold War years, Kohn detected “no conspiracy but repeated efforts on the part of the armed forces to frustrate or evade civilian authority when that opposition seems likely to preclude outcomes *1822 the military dislikes.” [FN35] Kohn believed that civilian-military relations in that period were as poor as in any other period in American history. [FN36] In 1992, then-Colonel Charles Dunlap (now a brigadier general and deputy JAG of the U.S. Air Force), even wrote an essay in the form of a fictitious letter from the future describing a military coup by the year 2012 because civilian leaders were calling on the military to perform essentially civilian tasks, such as stopping drug trafficking or feeding the poor, which would lead to a politicized officer corps. [FN37]

What events produced this crisis? The conventional explanation is that President Clinton entered office with a military already distrustful of him, because of questions raised during the 1992 campaign about whether he had dodged the Vietnam War draft. Matters only became worse when Clinton decided, as one of his first acts as president, to reverse the military's ban on openly gay personnel. The Joint Chiefs of Staff immediately met with President Clinton to express their strong opposition to the decision, which was followed by an extensive congressional lobbying effort by the military in support of a statutory codification of the ban, coordination with retired officers who could publicly criticize President Clinton's proposal, and leaks to the press of mass resignations should the ban be lifted. [FN38] Within a few months, President Clinton announced the existing “Don't Ask, Don't Tell” policy, which amounted to a significant change from the administration's original policy.

While the controversy over gays in the military held high political salience, it was only one example of resistance by the military after the end of the Cold War. General Colin Powell, for example, gave an on-the-record interview in the New York Times opposing military intervention in Bosnia while serving as chairman of the Joint Chiefs of Staff; meanwhile, civilians in Congress, the first Bush Administration, and the 1992 presidential campaigns were still debating policy options. [FN39] General Powell even published an editorial in his own name opposing any Bosnian intervention. [FN40] Military historians suggest that the open opposition of General Powell and the military delayed U.S. intervention in the Balkans by four years. [FN41] Military leaders sought to prevent the Clinton Administration *1823 from sending a large military force to intervene in Haiti, and blamed civilians for refusing to send adequate armor and resources for the mission in Somalia. Opposition from the military and the Pentagon prevailed over President Clinton's desire to support the treaty banning land mines and significantly impeded his signature of the treaty creating the International Criminal Court-- a decision the Bush Administration soon reversed with the broad backing of the uniformed military. [FN42]

During this period, the struggle between civilians and the military continued over less well-known issues as well. Military officers apparently undermined the administration of Secretary of Defense Les Aspin, leading to his resignation, and also forced his nominated successor, Admiral Bobby Ray Inman, to withdraw. Controversies accompanied the retirement of several four-star flag officers, and there seemed to be constant infighting over issues such as sexual harassment policies and women in combat. [FN43] No serious change in organizational force structure occurred, even though the primary enemy for which the American military had prepared for more than half a century, the Soviet Union, had disintegrated. As Kohn observed, “the uniformed leadership-- each service chief, regional or functional commander, sometimes even division, task force, or wing commanders--possessed the political weight to veto any significant change in the nation's fundamental security structure.” [FN44] Opposition to efforts to rethink policy in response to the end of the Cold War and developments in military technology continued into the Bush Administration, which experienced stiff resistance before the September 11 attacks to the “revolution in military affairs” promoted by Secretary Rumsfeld. [FN45]

One could say, of course, that none of these examples demonstrates that civilian control of the military in the United States is under any real threat. If the sole purpose of civilian control of the military is to prevent a coup, then the principle has not been seriously challenged. But civilian control of the military encompasses more than just formal control over the instruments of government. It must also be measured by the ability of the military to succeed in imposing its preferred policy outcomes against the wishes of civilian leaders to the contrary.

This was the heart of General MacArthur's challenge to President Truman's leadership, widely considered the most serious civilian-military *1824 conflict, at least since the Civil War. MacArthur posed no threat of a military takeover of the formal mechanisms of government. Rather, MacArthur publicly questioned the civilian decision, after Communist China's intervention in the winter of 1950, to pursue a limited strategy in the Korean War instead of outright victory. MacArthur claimed that he was not required to take orders from the president as commander-in-chief, and that he owed a greater obligation to a higher constitutional authority. After he had been relieved by President Truman, General MacArthur returned to the United States to cheering crowds and addressed a joint session of Congress. In a speech to the Massachusetts legislature, MacArthur said: “I find in existence a new and heretofore unknown and dangerous concept that the members of our Armed Forces owe primary allegiance or loyalty to those who temporarily exercise the authority of the Executive Branch of Government rather than to the country and its Constitution which they are sworn to defend.” [FN46] While certainly not as public or as brusque, some members of the uniformed military appear to share a similar attitude that civilian leaders are, at best, temporary office holders to be outmaneuvered or outlasted.

One of the most important sections of this article addresses the extraordinarily sensitive question of the role of JAGs in the current war on terror debates. It is exceptionally difficult for anyone, inside the military or out, to raise at this point because it both invokes and triggers many debates over military culture. But this is a conversation that needs to be had within the JAG, within the military as a whole, and among civilian and military leaders. I have very considerable admiration for the article's willingness to raise an issue that can have such profound repercussions:

... In this ambiguous arena, JAGs are immersed in more than just the straightforward application of widely accepted legal rules on the use of force. Rather, the United States is engaged in adapting the laws of war to this new type of enemy, with significant moral, policy, and political considerations. *1844 These questions involve the status of detainees, the applicability of the Geneva Conventions, the legality of targeting leaders of al Qaeda, and determining proportionality and distinction when terrorists conceal themselves within civilian populations. [FN123] This new application of the laws of war has placed the JAG Corps in the middle of questions that had once been the domain of the elected civilian leadership or combat commanders.

In some instances, some senior JAGs have preferences that are profoundly different than those held by the civilian leadership. There are a number of potential explanations. First, JAGs have been influenced in part by nongovernmental organizations in the human rights arena. [FN124] These organizations sharply criticize the U.S. government and military operations conducted in the War on Terror and characterize U.S. strategic and tactical decisions as violating moral as well as legal principles. Second, JAGs are responsive to the American legal academy, which also continues to criticize many operations in the War on Terror as violations of both U.S. constitutional law and international norms. Third, JAGs cannot help but see that the War on Terror has produced deep divisions among political parties and groups in civilian society.

The growth of the role of JAGs has been remarkable in the past thirty years, even more so in the past decade. [FN125] It has essentially gone unregulated. Legal ambiguities in the wars of the twenty-first century will undoubtedly require a continued and enhanced presence of JAGs in military operations. However, unregulated deference to the JAGs has limited some combat operations, and will continue to do so. [FN126] Civilian leaders should remain aware that the growth in JAG influence can have a detrimental impact on the nation's ability to win wars. Leaders have allowed a regime to arise in which the JAGs advise, within the confines of the law, the best means of achieving military objectives. American combat officers must now seek out JAGs for rulings on the incorporation of the law of armed conflict into their ongoing operations. It is no coincidence that this unprecedented role for JAGs developed at the *1845 same time that severe problems in civilian control over the military occurred in the wake of the Cold War.

JAGs, almost as surprised as others with their newfound prominence, must be mindful of the effects their advice can have on effective combat operations. [FN127] Their enthusiasm in providing advice on operational matters will be viewed by some as challenges to civilian control of the Armed Forces. Policy concerns regarding operations or political decisions regarding the conduct of war cannot be officially challenged by JAGs. If actions to resist civilian policy choices in the War on Terror continue, our rational model approach predicts a response by combat officers and civilian entities, ultimately resulting in a diminished role for JAGs.

As I said, I solicit your views.

Saturday, September 22, 2007

Ilya Somin on potential breakup in Belgium

The redoubtable Ilya Somin, over at Volokh Conspiracy, has a post here on articles speculating on the possibility of a breakup of Belgium into its two major ethnic and linguistic parts. The post goes on to discuss the virtues, and limits, of federalism. A couple of quick thoughts in no particular order.

1. Federalism tends to work best where there are more than two ethnic/linguistic groups in play. Binary federalism tends to feed into a zero sum game. I have sometimes thought (on no actual evidence whatsoever) that the prominence given to native peoples in Canada represented, apart from Canadian guilt spasms over past behavior, a rather clever ideological move to broaden the federalism discussion from two to three, and with the addition of Canadian style multiculturalism, a melange of everyone - every one his own minority - so to water down the nature of conflict by introducing so many of them. Canada has gone rather whole hog for the idea that to be Canadian is to be a minority, thus watering down the very idea of being a minority, at least a French-speaking Quebecker. The confusion introduced has the very great virtue - from the standpoint of Candada's governing elites in Ontario at least - of committing the management of all those many mini-conflicts into the hands of federal authorities.

2. It has been widely remarked, of course, that supra-federal structures such as the EU facilitate breakup along ethnic and linguistic lines because people inside the dissolving nation state feel less risk of civil war. This is particularly true of minorities left within the now dissolved nation state - the supra-federal structure will protect them from ethnic cleansing. The potential costs of dissolving are reduced, and from the standpoint of the supra-federal structure, it has the virtue of creating entities smaller than nation-states that are quite dependent upon it politically. This conception of the Roman empire reduplicated within the EU, with relatively homogenous ethnic and linguistic units inside it, has deep roots in Carl Schmitt - and I don't mean this here in order to tar this idea with the brush of Schmitt's reactionary collaboration with the Nazis, but it is historically true of this strand of intellectual thought within Europe. It is also not very compatible with genuine labor mobility within the empire - Poles moving to France, etc.

3. A test of federalism is not merely its ability to hold together a country, but its ability peaceably to oversee its breakup. The great example is the breakup of Czechoslovakia; if there is any example that is relevant to Belgium, that is it.

4. My own first practical encounter with pressures to breakup was in Yugoslavia in the middle 1980s, under Tito still, and long before it had fallen into civil war. I was monitoring the place for Human Rights Watch, and in Slovenia began to perceive that "progressive" opinion in each of those places had reached the conclusion that Slovenia was forced to pay for the impending disaster in Serbia and Kosovo, both in money and in conscript troops. They didn't want to get involved in the dispute between the Serbs and Albanians - and they understood very early on that ultimately, that was the fight, not with the Croats. They also didn't want to keep paying the costs of the Yugoslav wealth-transfer welfare state, believing correctly that it imposed serious costs on the standard of living in Slovenia. The Slovenes opted out of Yugoslavia on a combination of (a) washing their hands of the rest of the Yugoslav conflicts, (b) having maintained, very, very fortunately from their view, a homogenous population that had not accepted into Slovenian territory large numbers of Albanians or Serbs, (c) a completely hard headed economic calculation that the rest of Yugoslavia was an economic albatross around Slovenia's neck.

5. My other early encounter with Yugoslav separatism was at the very beginning of the Serbia-Croatia phase of the war. Indeed, in retrospect it must have been one of the very first armed encounters, if not the first. Human Rights Watch's experienced and wise Helsinki Watch director, Jeri Laber, and I, along with a Croatian intellectual who was unusual for being simultaneously a liberal humanist human-rights universalist but also a Croatian nationalist who favored separation, were out visiting places outside of the main cities that were going through waves of panic. We had been at a couple of Serb nationalist speeches in various rural places in Serbia, and we were now going through Croat villages. The big issue at the moment was the status of arms deposited at the local police stations as part of plans against an invasion either by the Warsaw Pact or NATO - now those arms would wind up fuelling the ethnic breakup, if the particular governments of Croatia, etc., could lay hands on them before the Yugoslav Army could seize them. Anyway, we wound up in one village where no one seemed to be about at all. Our Croatian companion suggested we simply wait - so we did. The villagers came back in small groups several hours later - they had gone to hide in the forest because, they explained, they remembered the ethnic slaughters and burnings of villages in the Second World War. I naively thought at the time that they were a bunch of peasants repeating their grandfathers' actions - the Yugoslavia I knew was an urbane, highly modern, politically relaxed place - whatever had happened in the past, it was way too civilized ever to behave like that again. It was as inconceivable to me as France and Germany going to war again. And boy was I wrong, of course.

But while we waited, I had a long conversation with my Croatian friend. His commitment to the universalism of human rights was real, and so was his belief that it was completely compatible with an independent Croatia. Which is true; the baseline human rights he supported wholeheartedly applied whether to Yugoslavia or to Croatia. But I asked him what was so important about an independent Croatia. Indeed, I quizzed him closely about what exactly he believed that a Croatia could do independently that he thought it was important to do now. I asked if he thought it was crucial that Croatia have an independent army - only, he said, to protect against the Serbs, but for that he preferred the UN or the then-EC because they would be neutral as against both Serbs and Croats. I asked if it was in order to control the economy - so that, as Slovenia had concluded, it would have control over its own economic destiny and not be forever subsidizing basket cases further south; he told me that Croatia was too small to be economically successful except as part of a larger economic unit, preferably the EC, and anyway he understood perfectly that Croatia needed to be economically integrated with Serbia. I asked whether it was that most traditional of sovereign state functions, the emittance and control of a currency - at which he looked genuinely shocked and said, you must be joking - turn control of a currency over to the rapacity of the government, no, no, no, the currency must be controlled by the EC, otherwise there would be hyperinflation within three years. Surprised by this point, I ran down the list of pretty much everything that a sovereign state would consider to be the crucial matters of sovereign control - defense, monetary policy, the economy, etc., etc. only to find that everything that I associated with sovereignty was to be controlled by an outside body, the EC, because he didn't trust his compatriots with anything internal, and he feared war with Serbia if there wasn't an outside body in charge of everything external.

A little exasperated, I asked him if there was anything that he thought Croatia should actually control on its own in the name of sovereignty. He said, yes, of course - language, language education in the schools, sponsorship of culture, and television. It all came down to culture - precisely those attributes of culture than a large and genuinely sovereign state more or less takes for granted. It was all about the promotion of Croatian language and culture, and the EC could, and should, control the rest. Echoes of Schmitt were in my head. As for the sizable Serb minority, they would be protected by universal human rights along with a protective regime of minority rights enforced by the EC. It was a very humanistic dream of how to have a relatively homogenous, culture protecting national enclave within a larger empire - and the whole dream fell apart, before the EC could take it all in, in war that broke out in earnest a few weeks later. It was also a peculiar conversation to be having in an empty Croat village where the inhabitants were hiding from the spectres of WWII ghosts that turned out to be not ghosts of atrocities past but ghosts of atrocities to come.

6. The model which many ordinary Muslim immigrants aspire in Europe and, over time perhaps, in the United States is not that of liberal integration, but instead communalism. It nicely fits with the multiculturalism of today's post-liberal West, whether the Netherlands or the United States, that isn't interested in integration, either. The model for many Muslim immigrants of how different groups should fit together is Ottoman. It makes good sense - it is what they came from, in a larger historical sense and, to give it its due, it was a pretty good model over a pretty long time of how to manage an empire with many different peoples and a dominant, but not exclusive, religion. It has the virtue, from the standpoint of immigrants, of putting core parts of one's identity, religion and ethnicity, or more precisely in the West's multiculturalist reinterpretation, religion as ethnicity, at the center of everything. It reinforces identity in a strange land, and it does so in a way that seemed to work back in the semi-golden past of the homelands.

It is also profoundly illiberal, however - a point that seems to bother not at all either large swaths of immigrants or the multiculturalists, including, amazingly enough, the human rights organizations, organizations that would be better described in their ideology as multiculturalists using the language of rights rhetorically (and in the law) to bludgeon opposition to what is really a post-liberal programme. Multiculturalism used to be, in the West, a language of patronization, as well as a conveniently if only superficially a liberal language for those not interested in undertaking the much harder work - because it requires a certain unapologetic cultural coercion - of liberal integration. Multiculturalism is today the language of fear, how elite managers seek cover for policies based, no longer on its patronization of, but on its fear of a population who, if told 'no' about anything that might be construed as religious, doesn't merely shout what it has been taught is the sum total of democratic liberal citizenship - "discrimination!" - but is distressingly prone to add, implicitly or explicitly, "And behead the enemies of Islam."

The fact of multiculturalism will have an effect on federalism in other places, such as Belgium or, for that matter, Canada. What those effects might be is quite uncertain, however. But multiculturalism and its chief client at this moment, various Muslim populations in the West, will necessarily effect calculations of what breakup might mean in places like Belgium.

6. Breakup is favored by many Western intellectuals, or a federalism so loose as to be a "soft" breakup. Iraq, of course, is the chief example. But the most learned and smartest scholar I know on questions of ethnic groups in conflict, Duke's Donald Horowitz, has written repeatedly of how it is that breakup of nation states on ethnic grounds quickly becomes a source of war. Horowitz's classic Ethnic Groups in Conflict is still required reading on this subject, and I strongly recomment his recent Wall Street Journal essays warning of what breakup might well lead to in Iraq, which are excerpted on this blog if you search.

7. The sovereign nation state still seems to me to be the best level - as between the homogenous mini-state or the empire - in which the conditions of liberalism can obtain - the levevl of interaction in which interests and universal values can best be mediated to include both. It avoids the false universality that so many imagine they find in pure cosmopolitanism - the 'citizen of the planet' stuff that so many of my law students, for example, entirely and unselfconsciously cocooned in the security and economic benefits of large nation states, imagine for themselves - while avoiding the chauvinism of unmediated and unchallenged particularity, either ethnic or religious, of the mini-state. Elite hostility to the large democratic nation-state - the only working model of liberalism and, quite possibly, the only political model in which liberalism can, however imperfectly, be realized - has always been mysterious to me and only explained, finally, on grounds of elite interests.